KESAVANANDA BHARTI v. STATE OF KERALA  (1973) 4 SSC 225

1. INTRODUCTION: –

The Kesavananda Bharati v. State of Kerala (2017) is a landmark case judgment in the  Indian Constitutional and Legal History given by the largest ever bench constituted by  the Supreme Court of India, comprising thirteen (13) judges of the Supreme Court. This  case is significantly known for the establishment of the “Basic Structure Doctrine” for  limiting parliamentary powers to amend the Constitution of India, especially fundamental rights provided in Part III of the Constitution. 

This case establishes a proper balance between Parliamentary supremacy and  Constitutional supremacy in India by giving the parliament the power to amend the  Constitution of India while conferring the power not to affect the provisions related to  the basic structure of the Constitution. 

In this case, the Fundamental question related to whether the Parliament can amend any  part of the Indian Constitution, including the Fundamental Rights, is resolved by the  power of amendment in the Constitution is given to Parliament, keeping in mind not to  affect the basic structure of the Constitution. 

2. HISTORICAL BACKGROUND OF THE CASE: –

Before the establishment of this landmark judgment by the Supreme Court of India, in  Kesavananda Bharti v. State of Kerala (1973) Case a deep historical background was established by the recent judgment by the court and the interpretations of the laws or  statutes given in that judgment. The two landmark cases in this field are;

• Shankari Prasad v. Union of India (1951): – In this Landmark Case, the Supreme Court of India held and ruled that the Parliament of India had the

power to make amendments to the Indian Constitution within the ambit of  Article 368, including the Fundamental Rights given in Part III of the  Constitution of India. 

• Golak Nath v. State of Punjab (9167): – Again, in this Landmark Judgement, the Supreme Court of India Overruled its own decision given in the Shankari Prasad Case by upholding that the parliament cannot amend the Fundamental Rights given under Part III of the Indian Constitution and they are beyond the  reach of parliament in its amending power. 

In reaction to the Golak Nath v. State of Punjab (1967), the Parliament had  passed the 24^th Amendment Act,1971, by stating that the Parliament has the  power to amend any part of the Constitution, including the Fundamental Rights.  The 24^th and 29^th Amendment Acts brought the protection of the Judicial Review  for socio-economic legislation. 

3. FACTS RELATED TO CASE: –

The Lead Petitioner of the case, His Holiness the Sripad Galvaru Kesavananda Bharti,  was the leader of Edneer Mutt, a religious sect in Kasaragod district of Kerala. Petitioner owned some plots of land in this mutt, and the government acquired some  land of the mutt, which includes Petitioner’s plots, under the Kerala Land Reforms Act,  1969. The Petitioner filed a petition on 21 March 1970, under Article 32 of the Indian  Constitution of India for the breach caused to his Fundamental Rights provided by the  Constitution. 

In this petition, the Petitioner challenged the Kerala Land Reforms Act,1969, amended  by the Kerala Land Reforms Amendment Act, 1971. The Petitioner had demanded the  enforcement of his Fundamental Rights under Part III of the Constitution, which caused  a breach, including the Right to equality under Article 14, Right to freedom to Acquire 

¹ Sankari Prasad v Union of India AIR 1951 SC 458

² Golak Nath v State of Punjab AIR 1951 SC 458

Property under Article-19(f), Right to Practice and Propagate Religion under Article 25, Right Admire Religious Affairs under Article-26, and Right to Compulsory  Acquisition of Property under Article 31. And demanded the validity of the 24^th, 25^th,  26^th and 29^th Amendment Acts as well. 

4. ISSUES LAID DOWN BEFORE THE COURT: –

The issues that are laid down against the thirteen (13) Judges Bench under this case are  related to solving some basic questions or queries related to the amendment power of  the Parliament of the Indian Constitution under Article 368 of the Constitution. The  principal questions raised against the bench are;

1. What is the Scope or extent of the Constitution-amending power of Parliament under Article 368 of the Constitution?
2. Does this power include amending Fundamental Rights under Part III of the Constitution?
3. Is there any space for Implied Limitations on this Power?
4. What is the validity of the 24^th, 25^th, and 29^th Amendments while establishing such power?

ARGUMENTS OF THE PARTIES: –

Arguments which are raised by both parties against the court are as follows: –

1. From Petitioner’s (Kesvanand Bharti’s) side: –
2. Fundamental Rights are the core part of the Constitution, and they can’t be destroyed or abrogated.
3. Parliament should only exercise its Amending power to an extent, and Article 368 does not give an unlimited or unrestricted power to Parliament.

Basic structure of the Constitution should be protected. 

1. Unrestricted amendment can lead to the abolition of democracy and a totalitarian state, which is not intended by the framers of the Constitution. 
2. From Respondent’s (State of Kerala’s) Side: –
3. Article 368 provides a sovereign and unlimited constitutional power to the Parliament.
4. Parliament represents the will of the people and can be free to amend the constitution according to the social and economic needs of the People.

The 24^th, 25^th, and 29^{th Amendments} are necessary to establish the validity  Directive Principles of State Policy (DPSP) over the Fundamental  Rights under the Constitution. 

6. JUDGEMENT GIVEN BY THE COURT: –

On 24^th April 1973 Judgement of this case was delivered by the Supreme Court of India  by a Bench organized in this case of thirteen (13) Judges, within a Majority ratio of 7:6, which is a very narrow margin. The Court held that: – “Parliament’s amending power is broad but not absolute; it cannot alter the basic structure or essential feature of the  Constitution.”

Findings of the Court: – By recognizing Parliamentary extensive authority, the court

found that the basic structure of the Constitution should be non-amendable and an  implied limitation is described on the Parliament’s Constitutional Amendment Power.  The key findings of the court in this case are: –

1. The 24^th Amendment was valid and Parliament can amend any provision of the Constitution, including the Fundamental Rights, by ensuring that such amendments cannot destroy the basic structure of the Constitution. 
2. The 25^th Amendment was partly valid, and its second proviso, excluding the judicial review, was unconstitutional.
3. The 29^th Amendment was upheld as not infringing the Basic Structure part of the Constitution.

REASONING OF THE MAJORITY BEHIND THE JUDGEMENT:

The reasoning given by the majority of judges during the judgment is as follows: –

1. Chief Justice S.M. Sikri: –Chief Justice S.M. Sikri reasoned that the constitution itself derived its power from the people of the country, which is why Article 368 cannot destroy the instrument created by the people themselves and a limited power is given to the Parliament. 
2. Justice Shelat and Grover: – They emphasised that the spirit of the constitution must remain unaltered and parliament may modify but not rewrite the charter.
3. Justice H.R. Khanna: – He reasoned that Parliament can amend the fundamental Rights but not the basic structure of the Constitution.
4. Dissenting Judges: – Justice A. N. Ray, G.D. Palekar, K.K. Mathew, M.H. Beg, S.N. Dwivedi and Y.V. Chandrachud (J) reasoned that the power of making an Amendment is unlimited but subject only procedural requirements of Article

MEANING OF THE BASIC STRUCTURE DOCTRINE: –

There is no single judgment or court interpretation that separately defines the term  “Basic Structure”, but judges identified various essential features of it by ensuring that  the constitution will remain a living and coherent document within them, including, but  not limited to: –

1. Rule of law,
2. Supremacy of Constitution,
3. Judicial Review,
4. Federal character of the state and separation of powers Democracy, e. Secularism,
5. Fundamental Rights etc.
6. OBITER DICTA AND OBSERVATIONS: – Some core observations are made by the bench after the commencement of the basic structure doctrine under this case;
7. Justice Sikri observed that the Constitution is a living organism and it can only be a part of growth, not of self-destruction.
8. Justice H.R. Khanna observed that the word “Amendment” necessarily implies the continuity of the existing structure of the Constitution.
9. The judiciary’s role as guardian of the Constitution is itself part of the basic structure.
10. Constitutional morality should guide the exercise of the basic structure. 10. SIGNIFICANCE AND IMPACT OF THIS CASE: –
11. Constitutional balance is brought by establishing a balance between flexibility and rigidity.
12. Judicial supremacy was established by invoking the doctrine to safeguard constitutional fundamentals.
13. This case remains as the foundation of the Indian constitutional jurisprudence. 11. CONCLUSION: –

In this way, the Kesawanand Bharti Case (2017) played a crucial role and became significant for the establishment of the basic structure doctrine, which constitutes the  Constitutional Superemacy over everything. The amendment power of parliament was  limited by this doctrine by setting the implied restrictions on the parliament for making  constitutional amendments. This is also famous because of the procedure followed in it  by setting a largest bench of thirteen judges it. This case established the Constitutional  supremacy over Parliamentary decisions and amendments and safeguarded the core  provisions of the Constitution in the form of basic structure formation. 

³ Kesavananda Bharati v. State of Kerala (1973) 4SSC 225 (SC) 

M.P. Jain, Indian Constitutional Law (8^th edition, 2023)